At the last Kent County commission meeting, a long-held tradition was legally called into question by a Grand Rapids resident.

Sam Jones-Darling told the board the invocation it holds prior to every commission meeting violates the Establishment Clause, which is found in the First Amendment to the U.S. Constitution. He also said he previously had e-mailed each board member to inform them of that situation, and he told commissioners at their Aug. 22 meeting that if they continued the practice, he would sue the county.

Jones-Darling told the board he spoke with a former attorney for the county, and that unnamed person told him the county’s invocation was illegal. He added that invoking the name of a Christian God violated his right to freedom of religion.

“I didn’t look at that as much of a warning as a threat,” said Commissioner Tom Antor of the e-mail he received from Jones-Darling. “I think we should go back and look at that and take it seriously.”

The county’s invocations are usually given by a commissioner, and most often the god they refer to is non-denominational. However, occasionally, a commissioner invites a Christian minister or a Catholic priest to give the invocation. One such minster invoked the name of Jesus Christ this year, and one commissioner recited The Lord’s Prayer in its entirety as the invocation.

According to the Freedom From Religion Foundation, both instances crossed the Establishment Clause line for government prayer because each invoked a specific faith. The foundation also contends that inviting a clergy member or a religious leader of a specific faith to give an invocation crosses the line.

The foundation’s website offers a series of lower court rulings that uphold its positions. But the Freedom From Religion Foundation cites the 1983 Supreme Court decision in Marsh v. Chambers as the basis for its position on the matter.

The decision did not define prayer at a public government meeting, such as the county commission meeting, as in violation of the Establishment Clause, which prohibits the establishment of a national religion and also bans governments from favoring one religion over another. But the court said the prayers have to be non-sectarian and non-denominational so as not to proselytize or advance any one faith.

“You’ve stepped into, simply put, the most difficult area of constitutional law that you could possibly imagine,” Devin Schindler told the Business Journal last week. He teaches constitutional law at the Thomas Cooley Law School in Grand Rapids.

Schindler said figuring out who is right and who is wrong in this situation isn’t at all clear cut, as case law has taken both sides in different courts.

Schindler said some justices have not seen it as a violation as long as they felt it didn’t force or coerce someone to pray, and have seen an invocation as a historically performed ceremony that can be accommodated. Others have ruled that prayer has no place at any public gatherings.

As for the Marsh decision, Schindler said it focused more on funding but it did address the prayer issue in a fairly decent manner. However, he added that it’s a 30-year-old law, and the legal test has changed since 1983.

“The question of prayer before government meetings is one of the most complicated issues under the Constitution today. There is a strong split of authority between judges who believe government can accommodate religion and judges who believe there must be a strict separation between church and state,” said Schindler.

The county commission meets again Thursday. The meeting’s agenda wasn’t available at this writing so it isn’t clear whether an invocation will be included. If it is, however, the next question is whether Jones-Darling will file a suit against the county asking for an injunction to halt the invocations. Schindler said he can file in either federal or state court but felt he would likely choose federal court.

“The focus of the lawsuit would clearly be on enjoining the county,” he said. “But if he is successful in doing so, he can be awarded attorney fees.”

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